As the New York Times and other media outlets report, on Wednesday, Dec. 16 the newly established UKSC released its landmark ruling in a case involving apparently discriminatory admission criteria by a Jewish school in North London. According to the traditional Orthodox Judaism definition, a person may be recognized as Jewish only if his or her mother was Jewish, or if he or she converted to Judaism via Orthodox conversion practices. A 12-year old applicant to the said Jewish school comes from a devout Jewish family, where the father is Jewish and the mother converted to Judaism via non-Orthodox (and thus supposedly more lenient) conversion process. There was no doubt about their substantive adherence to Jewish traditions. The school refused to admit the applicant on the basis of his questionable Jewishness, at least by the school’s Orthodox definition of “who is a Jew”. The UKSC applied extra-religious, general law equality norms to a religious community’s own membership criteria, thereby ruling that the school’s selective admission policy was unjustly discriminatory.
A broadly similar “who is a Jew” question has haunted Israeli constitutional law for decades. For a host of historical and political reasons, the Orthodox stream of the Jewish religion has long enjoyed the status of being the sole branch of Judaism formally recognized by the state. This exclusive status has enabled the Orthodox community to establish a near-monopoly over the supply of public religious services, and to impose rigid standards on the process of determining who is a Jew – a question that has crucial symbolic and practical implications as, according to Israel’s Law of Return, Jews who immigrate to Israel are entitled to a variety of benefits, including the right to immediate full citizenship. This has taken place while over two thirds of the world’s Jewry, on which Israel relies for essential symbolic, material, and strategic support, continues to live outside of Israel, and does not subscribe to the Orthodox stream of Judaism. As things now stand, the Israeli Supreme Court has recognized non-Orthodox conversion to Judaism performed outside of Israel but is yet to OK such conversions performed within Israel. In 2005, the Court recognized non-Orthodox ‘bypass’ conversions to Judaism performed de jure abroad. It held that a person who came to Israel as a non-Jew and, during a period of lawful residence there, underwent conversion in a recognized Jewish community abroad would be considered Jewish. This legitimized a practice referred to as “leap conversions” whereby residents of Israel may go abroad for a few days, undergo non-Orthodox conversion, and return to Israel as converted. So if you happen to think that American constitutional law of religion is somewhat convoluted, think again . . .